“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast deciding votes in two 6-3 rulings that denied stays of execution and review of the claims of two Black men who were immediately executed. Lawyers for one contended that his death sentence relied on false testimony and withholding of favorable evidence, and there was strong evidence that the other met the standards for intellectual disability that prohibit execution under federal law. The two December 2020 decisions, issued on consecutive days, are in Bernard v. United States and Bourgeois v. Watson.
As part of its rush to execute as many federal prisoners as possible before President Trump leaves office, the Trump-Barr Justice Department scheduled the execution of a Black man, Brandon Bernard, on December 10. Bernard had been sentenced to death because of his role as an accomplice in a murder carried out when he was 18 years old. The record shows that the prosecution sought the death penalty because of its contention that Bernard was “likely to commit criminal acts of violence in the future,” based on testimony that he was an “equal” member of a gang that had committed violent acts.
Two decades later, in a resentencing hearing for someone else involved in the crime, the former head of the gang unit in the police department involved in the case provided startling testimony. She explained that the gang that Bernard was a member of was “not composed of equal members,” but instead was a “thirteen-tier hierarchy with Bernard at the very bottom.” Her testimony also made clear that the prosecution “had known” about the gang structure and Bernard’s role in it at the time it sought the death penalty for him, including having reviewed a “pyramidal diagram” that she had developed at the time. But the prosecution failed to disclose this evidence when it sought the death penalty for Bernard and instead elicited testimony falsely claiming that all members of the gang, including Bernard, were equal.
After the revelations, Bernard’s lawyers moved for relief from the death sentence in federal court. The Fifth Circuit rejected the effort without considering the merits, however, because Bernard had previously sought relief from his the death sentence without raising these issues, even though he could not have known about them at the time of his first request. Bernard’s lawyers then went to the Supreme Court.
On the day of Bernard’s execution, the Supreme Court rejected a stay of execution and turned down his request for review in a one-line unsigned order with no explanation. Justices Sotomayor, Kagan, and Breyer dissented, and Sotomayor wrote a strong dissent. She explained that the Fifth Circuit’s “illogical” rule was contrary to Supreme Court caselaw and “perversely rewards” prosecutors who “successfully conceal” evidence favorable to a prisoner “until after” he or she has “sought relief from his convictions on other grounds.” Sotomayor also noted that “[f]ive of the nine jurors” involved in sentencing Bernard to death no longer believe he should be executed. Yet Bernard has “never had the opportunity” to litigate the merits of his claims in court “before he is put to death,” Sotomayor wrote, and as a result of the majority’s ruling, “he never will.”
On the very next day, the three Trump justices cast deciding votes in an almost identical unsigned order with no explanation that denied a stay of execution and review of the case of Alfred Bourgeois. In Justice Sotomayor’s dissent for herself and Justices Kagan and Breyer, she explained that Bourgeois’ lawyer presented evidence that his IQ is between 70 and 75, so that he cannot be executed under current federal law that prohibits execution of federal prisoners who are intellectually disabled, and a district court had found that they had made a “strong showing” to that effect. The Seventh Circuit reversed, however, based on a finding by a court a decade ago that he was not intellectually disabled, based on now-outdated standards and the judge’s “own lay observations and assumptions,” and because a petition for review had previously been filed in his case. Sotomayor pointed out, however, that there is a strong argument that the new petition falls under an exception that allows a second petition where the first petition is considered “inadequate,” in this case because the earlier petition could not possibly have determined whether he “is” currently disabled “under the materially different standards now prevailing.” This raises a “serious question that is likely to recur” in other cases, the dissent noted. But because of the majority’s rush to authorize Bourgeois’ immediate execution, he was executed, as Sotomayor put it, despite evidence that he “’is’ indisputably intellectually disabled under current diagnostic standards, contrary to” the federal death penalty statute’s “express terms.” Bourgeois was put to death shortly after the Court’s ruling on December 11.
Unfortunately, these two will not be the last federal executions scheduled before Trump leaves office, and which the three Trump justices are all too likely to allow to take place despite serious claims of injustice. Fortunately, federal executions will stop when Joe Biden becomes President on January 20.